The People v. Jennings

• Court: California Court of Appeals
• Citation: The People v. Jennings, 97 Cal.Rptr.2d 727, 81 Cal.App.4th 1301 (Cal. App. 2000)
• Decision Date: 30 June 2000
• Parties: (Cal.App. 1 Dist. 2000) THE PEOPLE, Plaintiff and Respondent, v. ARTHUR RAY JENNINGS, Defendant and Appellant. In re ARTHUR RAY JENNINGS on Habeas Corpus. A084322 A087469 Filed

97 Cal.Rptr.2d 727 (Cal.App. 1 Dist. 2000)

THE PEOPLE, Plaintiff and Respondent, v. ARTHUR RAY JENNINGS, Defendant and Appellant.

In re ARTHUR RAY JENNINGS on Habeas Corpus.

A084322

A087469

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FIRST APPELLATE DISTRICT DIVISION THREE

Filed 6/30/00

(Solano County Super. Ct. No. C45337)

Trial Judge: Hon. Harry S. Kinnicutt

Robert J. Graham, under appointment by the Court of Appeal for Defendant and Appellant

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Stan M. Helfman, Supervising Deputy Attorney General, Laurence K. Sullivan, Deputy Attorney General, for Plaintiff and Respondent

CERTIFIED FOR PARTIAL PUBLICATION¹

McGuiness, P.J.

This appeal and petition for writ of habeas corpus arise from a series of incidents in which appellant Arthur Ray Jennings committed acts of domestic violence against victim Katherine T.² A jury convicted appellant of felony assault and aggravated assault by means of force likely to produce great bodily injury, as well as the two misdemeanors of dissuading a victim by force or threat and making threatening telephone calls.

On his direct appeal, appellant contends we must reverse his conviction because of (1) the alleged unconstitutionality of Evidence Code section 1109, pursuant to which the trial court admitted three prior incidents of domestic violence by appellant against the victim; (2) the trial court's failure to give a limiting instruction on the prior domestic violence evidence; and (3) alleged ineffective assistance of counsel in his trial attorney's failure to request such a limiting instruction. On his writ petition for collateral relief, appellant asks this court to issue a writ of habeas corpus vacating the judgment of conviction on the grounds (4) he received ineffective assistance of counsel because of his trial attorney's failure to subpoena a police officer to testify at trial regarding an alleged jailhouse conversation with appellant; and (5) he was deprived of a fair hearing on his motion for a new trial because of the failure of the officer to appear at the hearing and alleged misstatements by the prosecutor about the absence of any evidence the jailhouse conversation took place. None of these contentions has merit. We therefore affirm the judgment and deny the writ petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant and victim Katherine T. met in July 1996, and thereafter commenced an intimate relationship. They lived together until May 1997, after which T. moved with her daughter to a different address in Fairfield. Although appellant and T. were no longer living together in October 1997, appellant had a copy of the key to T.'s new apartment.

On October 29, 1997, appellant admitted himself to T.'s apartment. He came into T.'s bedroom, swore at her, and yelled at her to get her "ass up off the bed." Appellant was angry at T. about contacts she had recently had with Charles W., the father of T's daughter. Appellant ordered T. to telephone W. Appellant had an argument with W. over the telephone and then broke T.'s telephone. Afterwards, T. told appellant she was not happy and wanted to end their relationship. Appellant slapped T. hard, causing her head to hit the wall. Appellant then threw T. on the floor, pinned her down and choked her with his left arm, and used his closed right fist to punch her twice on the forehead and once behind her ear. Appellant then kicked or "stomped" on T. several times on her right side.

After beating T., appellant got some ice from the kitchen and told her to put it on her forehead. She did this for five or ten minutes. Appellant took away the ice and told T. to remove her clothing and get in bed. Appellant then straddled her with his knees on her shoulders, rubbed his penis on T.'s face, and asked her to orally copulate him. T. refused. Appellant placed his penis in T.'s vagina, copulated her, and then masturbated on T.'s stomach. Afterwards, T. put her clothes back on and started to cry. Appellant became angry with T. again, and once more started choking and hitting her. He warned her that if she reported him to the police and he went to jail, " '. . . when I get out, I'm going to kill you and your daughter.' " Appellant left T.'s apartment around 3:15 p.m. After T.'s daughter came home from school, T. put the couch up to the door and reported the incident to her apartment manager.

Danise Werner, the resident manager of T.'s apartment, met with T. between 4:00 and 5:00 p.m. on October 29, 1997. T. appeared "real nervous" and "shaky," and "couldn't really speak very well." Werner observed "a big lump" in the center of T.'s forehead. T. told Werner that she needed to replace the locks on her front door, and then started crying. T. told Werner that her boyfriend had "somehow made a key" and had come into her apartment and assaulted her that morning. The lock on T.'s front door was changed the next day.

Appellant returned to T.'s apartment uninvited between 11:15 and 11:45 p.m. on November 5, 1997. Werner saw him pounding on T.'s door and window. She told appellant to leave the property. After appellant left the premises, he telephoned T. repeatedly through the night, telling her to open her door and let him in. Among other things, appellant told T. he would never allow her to leave him, and "the relationship was not going to be over until he say[s] it's over." About two hours after appellant left the premises and thirty minutes after his last telephone call to T., a large rock was hurled through T.'s front window. At this point, Werner told T. to call the police.

The next day, T. went to a woman's crisis center for a restraining order and gave a statement to Officer Ross Hawkins of the Fairfield Police Department. The victim was "[c]rying, scared [and] withdrawn." Officer Hawkins noticed a "[v]ery obvious" and "significant" injury on her face, like a "knot" or "large bump right in the middle of her forehead," "about the size of . . . a half a dollar." That afternoon, Officer Hawkins went to appellant's residence and arrested him. Appellant telephoned the victim four times from jail. She did not answer the calls, but appellant left messages on her answering machine. Around 4:30 p.m., Officer Hawkins responded to a call from T. and went to her apartment, where she played him the telephone answering machine messages from appellant. Among other things, appellant said " 'Why are you doing this to me? I'll see you when I get out,' " and " 'Paybacks are a bitch.' " Officer Hawkins took possession of the telephone answering machine message tape, which was subsequently played for the jury at trial.

The victim was permitted to testify on direct examination at trial to three prior incidents of domestic violence involving appellant. On September 21, 1996, she had asked appellant "to pack his stuff and leave" her residence after he had yelled at her daughter and pushed her against a wall. In response, appellant hit T. three or four times and then kicked in her apartment door. The victim reported this incident to the police. On February 3, 1997, appellant slapped T. in a jealous rage. Later, a rock broke T.'s bedroom window, and she saw appellant's car leaving the driveway immediately afterwards. Finally, on May 24, 1997, appellant urged T. to change her story and drop the domestic violence charge pending against him from the earlier incidents. When T. said there was nothing she could to about it because the district attorney had already initiated the case, appellant straddled her in bed, stuck his finger in her eye, hit her on the leg, and choked her.

Appellant testified at trial in his own defense. He acknowledged being arrested in May 1997 for an incident of domestic violence against T., but denied ever hitting her. Appellant claimed he pled no contest to the charge and served time in jail only because he was having problems with his attorney at the time. Appellant also denied assaulting T. or visiting her apartment on October 29, 1997. According to appellant, he was at home that morning around breakfast time with Velma Paz, his elderly landlady. He left around 9:40 a.m. and spent the rest of the day in Oakland and Vacaville with two other friends, Chauncy Banks and Linda Moore. Although Paz corroborated part of appellant's story, on cross-examination she acknowledged that she did not make breakfast that morning because she was late for a class, she had actually left her house well before the time appellant claimed to have been there, and she had not been accurate in some of her other statements about the time she had allegedly seen appellant that morning. Moore acknowledged that she was a "good friend" of appellant; they were "like family," and frequently helped each other out. Moore testified that "[i]f he needed me, . . . I'm there for him."

In rebuttal, Charles W. testified he received a collect telephone call from T. around 7:30 a.m. on the last Wednesday in October 1997. Almost immediately, appellant got on the telephone in a rage, demanding to know why W. was "calling their house," and threatening to "beat" W.'s "ass."

Appellant was charged with assault with intent to commit oral copulation, aggravated assault with force likely to produce great bodily injury, an attempt by force or threat of force to dissuade a witness from reporting a crime, and making threatening telephone calls. (Pen. Code, 220, 245, subd. (a)(1), 136.1, subd. (c)(1), 653m, subd. (d).) Appellant pled not guilty to all charges. On the People's motion, the trial court permitted the admission of evidence of prior acts of domestic violence pursuant to Evidence Code section 1109 and 1101, subdivision (b).³ The jury found appellant guilty of assault (Pen. Code, 240), a lesser included offense of the first count of assault with intent to commit forcible oral copulation; and convicted him on all three remaining...